The Ultimate Instruments of One-upmanship in the World of Constitutions

After having resisted for nearly 3 weeks, I could no longer put off the discussion on the most controversial topics of Indian Constitutional Development. The one-upmanship referred to in the title is the conflict for supremacy between the two arms of the Government - the Parliament and the Judiciary. It would have been almost impossible to refrain from getting into the discussion on how it is not so much a conflict between the Parliament and the Judiciary, as between the Political Executive in collaboration with the majority in Loksabha and the Judiciary, had it not been for the main object of the topic, the ultimate instruments developed by each of these arms. So this post is not about separation of powers, Parliamentary or Judicial Supremacy, comparison between the Presidential or Parliamentary forms, the primacy between Fundamental Rights and Directive Principles of State Policy, although these topics will be touched upon for their incidental, consequential and not substantial values.

The conflict has had a 60-year long history. It started in the Constituent Assembly, when its members debated the extent to which the Judiciary was to be made independent and the Parliament supreme (little did they expect that both the arms would develop their own ingenious and then extra-constitutional means to change this state of affairs).The means referred to here are
1. the IX schedule
2. the Doctrine of Basic Structure

It is quite apparent why the IX Schedule is being referred to as an instrument here. What makes it the Ultimate instrument of the legislature is the preclusion of any law included in the IX schedule from judicial review.

But the instrumentality of Doctrine of Basic Structure is perhaps not as intuitive. If one looks at it, it only appears to be like any other ordinary principle, like the Doctrine of Progressive Interpretation or the Doctrine of Severability. What makes it powerful is its a non-exhaustive nature. The SC after the invention of the doctrine has added many more features to it in its subsequent judgements. As basic structure finds no clear mention in the Constitution, it's definition is completely at the mercy of the SC's discretion. In short, basic structure is, what the SC says it is.

What is fascinating though, is not that both the arms invented their own instruments, but the fact that just like these arms were supposed to complement each other, so do their instruments. The Doctrine of Basic Structure is to the Judiciary exactly what the IX schedule is to the Parliament. Both have monopolies on their respective inventions and their contents, and use them against each other, when crossing into each others' jurisdictions, while preserving their own autonomy. The only saving grace in case of the judiciary is that it has tried to attribute its invention to the Constitution itself, so the arbitrariness was well-concealed in the alleged liberal interpretation of Constitution. The parliament on the other hand was pressed for more urgent matters such as land reforms and socio-economic equality, so it did not offer any other explanation to the arbitrary use of its Constituent powers.

So what is the status of this conflict today? Which instrument prevails over the other? From the most recent judgements of the SC it would seem that Basic Structure has won the battle. The SC judgement in Minerva Mills Vs.Union of India (1980) pronounced Judicial Review to be a basic structure, while its judgement of 2007 on IX schedule has given a clear cut primacy to Basic Structure over the IX schedule. The judgement pronounced by the then Chief Justice of India, Justice Sabharwal, on January 11 (incidentally just a day before he retired as the CJI) said that the inclusion of any law into the IX schedule after the Kesavananda Bharati judgement (24th April, 1973) can be challenged under the Basic Structure Doctrine.

So do these judgments make the judiciary more powerful than the legislature? I beg to differ on this point with many experts. What needs to be balanced is the combination of the legislature and its powers with the judiciary and its powers. So individual arms cannot and should not be compared without taking into account their powers and the procedure of invoking them.

Thus, though it seems that the Doctrine of Basic Structure can over-ride that of the IX schedule, it cannot be invoked unless the laws included in the IX schedule are challenged in the court of law. Supreme Court invented a powerful instrument for itself, but it cannot act on its own accord. It cannot take suo motu actions. It's extra-ordinary powers can be invoked only by the citizens of India, who are sovereign. One can therefor say that it is the sovereignty of People of India that prevails, neither the Basic Structure nor the IX schedule. In conclusion it can be said that the instrumental nature of Basic Structure and IX schedule also reinforces the instrumentality of their creators.

The research for this post helped me sort out my own thoughts on Basic Structure Doctrine and the IX Schedule among many other things to a certain extent. Another discussion on these two concepts about their sui generis nature will hopefully take care of the rest. Until then I conclude this discussion here and hope to be able to move on to a new topic in the next post.